Appeal by plaintiff, Willie B. Duval and defendant, OM
Hospitality, LLC, d/b/a Days Inn from the judgment entered 27
June 2006 by Judge Robert D. Lewis in Superior Court, Buncombe
County. Heard in the Court of Appeals 26 April 2007.
George W. Moore for Plaintiff-Appellant.
Brotherton Ford Yeoman & Berry, PLLC by Steven P. Weaver for
Defendant/Appellee/Cross-Appellant.
STROUD, Judge.
Plaintiff filed a complaint on 25 October 2005 against
defendants OM Hospitality, LLC, d/b/a Days Inn (“OMH”) and Days Inn
Worldwide, Inc.
(See footnote 1)
(“Day's Inn”) alleging a claim for personal injury
based upon defendant OMH's negligence. Defendant OMH filed a
motion for summary judgment on 8 June 2006 which was denied as to
defendant's actionable negligence and allowed as to plaintiff's
contributory negligence on 27 June 2006. Plaintiff and defendant
OMH appeal.
I. Background
On 26 October 2002, plaintiff and her husband were guests at
a Days Inn motel (“motel”). At about 6:30 a.m., they left their
motel room, and plaintiff alleged it was necessary to walk down an
unlit, dark stairwell to exit the motel. Plaintiff alleged there
was no light in the stairwell because a light timer which
controlled the light in the stairwell had been deactivated.
Plaintiff testified in her deposition that it was “pitch dark” out
and that it was so dark that plaintiff could not see the steps.
Plaintiff tripped and fell while descending the stairs, and thefall caused injuries to her nose, forehead, right arm, and left
leg.
In her verified answer to interrogatories from defendant,
plaintiff described the manner in which the accident occurred:
My husband and I both held the stair rail as
we went descended [sic] the stairs. My
husband used his walking stick ahead of him to
feel for the next step. When I thought that I
had reached the bottom of the stairway, I
stepped forward and fell face-down on the
concrete because I was actually on the last
step and not on the ground floor.
In her deposition plaintiff admitted that she “realized that the
stairway had no lights” and she knew there was a possibility she
could fall but “there was no other way out as far as [she] knew.”
Plaintiff also alleged that defendant was aware of the lack of
lighting in the stairwell and failed to take reasonable action
either to correct the condition or to warn users of the stairs of
the condition.
Defendant answered plaintiff's complaint, admitting
defendant's ownership of the motel premises and that plaintiff and
her husband were guests, but denying the remaining allegations.
Defendant also raised contributory negligence as an affirmative
defense, alleging that plaintiff was negligent as she failed to
exercise reasonable care in descending the stairs, failed to use a
reasonable alternative route which was available to her, and that
she knowingly exposed herself to an open and obvious danger.
On 8 June 2006, defendant moved for summary judgment on the
basis that there was no genuine issue as to any material fact and
that defendant was entitled to judgment as a matter of law. On 27June 2006, the trial court denied defendant's motion for summary
judgment as to the issue of “actionable negligence of the
defendants”, but granted the motion as to “plaintiff's contributory
negligence.” Plaintiff appealed from the trial court's order
granting the motion for summary judgment based upon contributory
negligence, and defendant cross-appealed the trial court's denial
of its motion for summary judgment as to defendant's negligence.
II. Interlocutory Appeal
[1] Although the parties have not raised this issue, “whether
an appeal is interlocutory presents a jurisdictional issue, [and]
this Court has an obligation to address the issue
sua sponte.”
Akers v. City of Mt. Airy, 175 N.C. App. 777, 778, 625 S.E.2d 145,
146 (2006). An interlocutory order is generally not immediately
appealable.
Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577,
578 (1999),
disc. rev. denied, 352 N.C. 150, 544 S.E.2d 228 (2000).
A final judgment is one which disposes of the
cause as to all the parties, leaving nothing
to be judicially determined between them in
the trial court. An interlocutory order is
one made during the pendency of an action,
which does not dispose of the case, but leaves
it for further action by the trial court in
order to settle and determine the entire
controversy.
Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381,
rehearing denied, 232 N.C. 744, 59 S.E.2d 429 (1950)(internal
citations omitted).
A. Failure to Dispose of All of the Parties
[2] The judgment granting summary judgment did not dispose of
the case as to all parties, as plaintiff entered into a stipulationof dismissal without prejudice as to defendant Days Inn. This
Court has recognized that a voluntary dismissal without prejudice
as to one defendant may render an order of summary judgment as to
other defendants interlocutory.
Hill v. West, 177 N.C. App. 132,
627 S.E.2d 662 (2006). However, this case may be distinguished
from
Hill v. West.
See id.
Hill was the second appeal to this court, after the first
appeal had been dismissed as interlocutory because there was one
defendant remaining in the case while orders of dismissal or
summary judgment had been entered in favor of the other defendants.
Id. at 133-34, 627 S.E.2d at 663. After this Court dismissed the
appeal, the parties entered into a consent order, dismissing the
remaining defendant, Teresa West, (“West”) from the case, without
prejudice.
Id. The consent order specifically provided “that if
this case is remanded for trial, all claims against [West]
may be
reinstated as the Plaintiffs deem necessary and that the prior
dismissals without prejudice will not be pled as a bar to said
claims.”
Id. at 135, 627 S.E.2d at 664 (emphasis added).
The
Hill plaintiffs then filed notice of appeal again, both
from the order of summary judgment and dismissal which they had
previously appealed and from the consent order which dismissed West
without prejudice.
Id. at 134, 627 S.E.2d at 663. The
Hill court
stated that based upon the entry of the consent order for voluntary
dismissal, they believed that “counsel [were] manipulating the
Rules of Civil Procedure in an attempt to appeal the 2003 summary
judgment that otherwise would not be appealable.”
Id. at 135, 627S.E.2d at 664. We also note that as of 4 April 2006, the date of
filing of
Hill, plaintiffs would still have been able to renew the
claim against West, as the time for plaintiffs to refile under
North Carolina Rule of Civil Procedure 41(a)(2) had not yet
expired.
(See footnote 2)
See id. 177 N.C. App. 132, 627 S.E.2d 662;
see also N.C.
Gen. Stat. § 1A-1, Rule 41(a)(2) (2005). The language of the
consent order could arguably have even permitted plaintiffs to
reinstate their claims against West after a year had expired,
beyond the time permitted by Rule 41.
See Hill at 135, 627 S.E.2d
at 664;
see also N.C. Gen. Stat. § 1A-1, Rule 41(a)(2).
In the present case, the stipulation of voluntary dismissal as
to defendant Days Inn was filed on 19 January 2006. Time has
expired for plaintiff to refile this claim against defendant Days
Inn pursuant to North Carolina Rule of Civil Procedure 41(a)(1).
See N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2005). The stipulation
of dismissal did not contain any additional language purporting to
give plaintiff any time beyond that permitted by Rule 41(a)(1) to
pursue her claim against Days Inn. The procedural posture of this
case does not cause us to believe that counsel are “manipulating
the Rules of Civil Procedure in an attempt to appeal” an order that
should not be appealable.
Hill at 135, 627 S.E.2d at 664. We
therefore conclude that
Hill is inapposite and does not compel usto dismiss this appeal as interlocutory.
Hill 177 N.C. App. 132,
627 S.E.2d 662.
B. Summary Judgment as to Contributory Negligence
[3] “A grant of partial summary judgment, because it does not
completely dispose of the case, is an interlocutory order from
which there is ordinarily no right of appeal.”
Liggett Group v.
Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). However,
“[a] finding of contributory negligence is a bar to recovery from
a defendant for acts of ordinary negligence.”
Bosley v. Alexander,
114 N.C. App. 470, 472, 442 S.E.2d 82, 83-84 (1994).
Here, the trial court granted defendant's summary judgment
motion as to contributory negligence and denied it as to actionable
negligence. Normally, a partial summary judgment grant is
interlocutory, but here, a granting as to contributory negligence
completely disposes of the case.
Liggett Group, Inc. at 23, 437
S.E.2d at 677. Finding that plaintiff was contributorily negligent
created “a bar to recovery . . . for acts of ordinary negligence.”
Bosley, 114 N.C. App. at 472, 442 S.E.2d at 83. Thus, we find that
this partial grant for summary judgment is not interlocutory as it
“disposes of the cause . . . leaving nothing to be judicially
determined between [the parties] in the trial court.”
Veazey, 231
N.C. at 361-62, 57 S.E.2d at 381. We have concluded that this
appeal is not interlocutory, and thus we will address the merits of
the appeal.
III. Granting of Summary Judgment as to Contributory Negligence
[4] Appellant argues that the trial court committed reversible
error by allowing summary judgment as to plaintiff's contributory
negligence. We must view the evidence presented by the parties in
the light most favorable to the plaintiff.
Bruce-Terminix Co. v.
Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577
(1998). Summary judgment is proper when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005). However, summary judgment is “rarely appropriate” in cases
of negligence or contributory negligence.
Ballenger, 38 N.C. App.
50, 55, 247 S.E.2d 287, 291 (1978).
In a case dealing with a plaintiff's injury from slipping and
falling “[t]he basic issue with respect to contributory negligence
is whether the evidence shows that, as a matter of law, plaintiff
failed to keep a proper lookout for her own safety.”
Rone v. Byrd
Food Stores, Inc., 109 N.C. App. 666, 670, 428 S.E.2d 284, 286
(1993). Summary judgment is proper only if
the evidence establishes plaintiff's
contributory negligence as a matter of law,
[when] the evidence taken in the light most
favorable to plaintiff establishes her
negligence so clearly that no other reasonable
inference or conclusion may be drawn
therefrom. Contradictions or discrepancies in
the evidence even when arising from
plaintiff's evidence must be resolved by the
jury rather than the trial judge.
Rone at 670-71, 428 S.E.2d at 286-87.
In addition, “[t]he existence of contributory negligence does
not depend on plaintiff's
subjective appreciation of danger;
rather, contributory negligence consists of conduct which fails to
conform to an
objective standard of behavior - the care an
ordinarily prudent person would exercise under the same or similar
circumstances to avoid injury.”
Smith v. Fiber Controls Corp., 300
N.C. 669, 670, 268 S.E.2d 504, 507 (1980) (internal quotations
omitted) (emphasis in original).
This situation is very similar to the facts in
Rappaport v.
Days Inn, in which the plaintiff fell in a dark parking lot when
attempting to go from a car to her assigned motel room. 296 N.C.
382, 385, 250 S.E.2d 245, 248 (1979),
overruled in part, Nelson v.
Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998).
(See footnote 3)
The
Rappaport
court stated that
[u]nder the evidence in this case the
mere fact that plaintiff attempted to go to
her room in the darkness does not constitute
contributory negligence as a matter of law.
Reasonable men may differ as to whether
plaintiff was negligent at all in attempting,
despite the darkness, to reach the room to
which she had been assigned. What would any
reasonably prudent person have done under the
same or similar circumstances? Only a jury
may answer that question because the evidence,
taken in the light most favorable to
plaintiff, fails to establish plaintiff's
negligence so clearly that no other reasonable
inference may be drawn therefrom.
Rappaport at 387-88 250 S.E.2d at 249.
Defendant contends that plaintiff was fully aware that the
stairwell was so dark that she could not see the steps, so that she
was contributorily negligent by using the stairwell under these
conditions and by her failure to seek another way out of the motel.
It is certainly possible that a jury may agree with defendant.
However, considering the evidence in the light most favorable to
plaintiff, as we must for the non-moving party,
Bruce-Terminix Co.,
130 N.C. App. at 733, 504 S.E.2d at 577, a jury could also find
that plaintiff acted reasonably in using the stairwell since she
was not aware of another way out and because she used proper care
in descending the dark stairs, carefully and slowly, holding the
railing, and having her husband ahead of her feeling for the steps,
but fell nonetheless. We therefore reverse the trial court's order
granting summary judgment in favor of defendant OMH on the issue of
contributory negligence.
IV. Denial of Summary Judgment as to Negligence
[5] Generally, an appeal for dismissal of a motion for summary
judgment is interlocutory.
Hallman v. Charlotte-Mecklenburg Bd. of
Educ., 124 N.C. App. 435, 437, 477 S.E.2d 179, 180 (1996).
Ordinarily, the denial of a motion for summary
judgment does not affect a substantial right
so that an appeal may be taken . . . . To
allow an appeal from a denial of a motion for
summary judgment would open the flood gate of
fragmentary appeals and cause a delay in
administering justice.
Shoffner Indus., Inc. v. W. B. Lloyd Const. Co., 42 N.C. App. 259,
272, 257 S.E.2d 50, 59,
disc. rev. denied, 298 N.C. 296, 259 S.E.2d301 (1979). Here, just as in
Shoffner Indus., Inc., we have a
cross-appeal on a motion for summary judgment.
See id. We agree
with
Shoffner Indus., Inc., and hold that
[D]efendant's . . . cross appeal could be
dismissed for [being interlocutory]. However,
to avoid any confusion about the posture of
the case . . . we have reviewed the pleadings
and supporting [documents] in support of and
in opposition to the motion for summary
judgment. Suffice it to say that they
obviously give rise to genuine issues of
material fact and granting of summary judgment
would be patently erroneous. For the limited
reasons stated, we affirm the trial court's
[decision on] the motion for summary judgment.
Id. at 272-73, 257 S.E.2d at 59.
V. Conclusion
For the reasons stated above, we reverse the trial court's
order granting summary judgment in favor of defendant OMH as to
plaintiff's contributory negligence and we affirm the trial court's
order denying summary judgment as to defendant's negligence.
AFFIRMED IN PART and REVERSED IN PART.
Judges McCULLOUGH and BRYANT concur.
Footnote: 1